6.  The applicant and another person were suspected of having sexually abused the applicant's two daughters, K. born in October 1986 and J. born in October 1990.
During the pre-trial investigation, K. and J. were questioned on 16 February 1997 and on 19 January 1997 respectively.
Subsequently, they were questioned again and the interviews were recorded on videotape. K. was interviewed on 15 June and 6 December 1998 and J. on 22 June and 7 December 1998.
7.  On 3 December 1998 at the pre-trial stage, the applicant was shown the videotapes. She contested the suspected sexual abuse. She was given an opportunity to have questions put to the children, but she did not avail herself of the opportunity. Her counsel was also present.
In her closing statement of 4 February 1999 she maintained that she was not guilty of any offence. She also considered the children's statements contradictory and unclear.
8.  The applicant, among others, was charged before the District Court (käräjäoikeus, tingsrätten) with having sexually abused the two children on several occasions between 1992 and 1996. The defendants denied the charges.
9.  The District Court heard the applicant, the co-accused and ten witnesses, including a psychiatrist, two psychologists and several persons, who had taken care of the children and offered them a foster home over the years. The District Court also watched the above videotapes. The pre-trial investigation minutes and several medical reports drawn up by a psychiatrist and a psychologist were referred to in evidence. The children did not appear before the court. Nor did the defence make any request to that effect.
10.  In its judgment of 13 October 2000 the District Court noted that the oral evidence was of an indirect nature and that the case turned on the assessment of the credibility of the children's statements. The court convicted the applicant as charged and sentenced her to seven years' imprisonment. She was detained.
11.  The applicant, among others, appealed, denying the charges. She argued that the conviction was based on contradictory and indirect evidence. In her writ of appeal she did not, however, request that the children be heard before the Court of Appeal (hovioikeus, hovrätten).
12.  On 26 April 2001 K. visited the applicant in prison. It appears that the applicant asked K. whether she had ever abused her children. In front of other people K. withdrew her previous accusations, stating that there had never been any sexual abuse.
13.  Having learnt of K.'s statement, the applicant's counsel made a request by telephone to the Court of Appeal to the effect that K. be called as a witness in the forthcoming oral hearing or that she be questioned in an additional investigation conducted by the police during which the interview could be videotaped.
14.  On 8-10 May 2001 the Court of Appeal held an oral hearing. The applicant, the co-accused and the witnesses were reheard. The Court of Appeal also heard four new witnesses, including L., a deacon, and M.K., a social official, who had been present during K.'s above-mentioned visit to the prison. The videotapes, the pre-trial investigation records and the medical reports were referred to in evidence. K.'s foster mother testified that the girl did not want to appear before the court. Her treating psychologist stated that she did not recommend that K. be heard in court. She also testified that K. was very prone to external influence and that her ego structure contained much repression and that “it would be too upsetting for her to face the deeper reality”.
15.  The applicant's counsel repeated the above request at the oral hearing on 10 May 2001 and also requested an opportunity to put questions to K.
16.  The Court of Appeal noted that the applicant stated that she had asked K. whether the children had been raped at their home whereas L. did not remember that such a direct question had been put to the girl at all. According to L., the applicant had asked whether “something like that” had taken place. Given the context, L. had however concluded that the question had related to the events leading up to the applicant's detention. L. considered that the girl's reply had appeared credible and that the question had not been leading in nature. According to M.K., the applicant had cried and said that the prison was gloomy. She had gone on saying to the girl that she had not done the things that she was now imprisoned for. The girl had then answered “no, you have not”. M.K. considered that the applicant's question had been leading in nature, leaving the girl with no other option than to answer the way she had.
The Court of Appeal refused the applicant's requests. It reasoned:
“The applicant, L. and M.K. have given somewhat different testimonies on the discussions in prison. The applicant has stated that she had asked whether the children had been raped at their home whereas L. has not remembered that such a direct question had been put to the girl at all and M.K. has stated that K. had only replied to a question that appeared from the context. However, the Court of Appeal finds it established that K. replied in the negative to the applicant's question whether K. had given truthful statements about the sexual abuse.
It has been established that K. has not on her own initiative expressed her wish to alter her earlier statements in the case. It rather appears that K. has been trying to forget the sad events in her early childhood. She has refused to clarify them openly. Moreover, as K. has expressed her wish to re-approach her mother, whom she has not met for a long time, it is evident that she has been unable to give a considered response [to the applicant's question], given the circumstances in which the visit took place. It has thus not been established that the hearing of K. before the court or by any other means could bring additional evidence significant to the case.
Also the fact that it would be particularly stressful for the now 14-year-old K., given the personal nature and significance of the case, to be heard again speaks against hearing her.”
17.  In its judgment of 8 June 2001 the Court of Appeal considered that as a hearing in court could be harmful to the children, now aged 10 and 14 respectively, it was possible to use in evidence their statements during the pre-trial investigation.
18.  It noted that the case turned on an assessment of the credibility of the children's statements. In assessing their credibility particular regard had to be had to unclear factors such as the time that had passed since the acts and the children's young age. Moreover, they had been exceptionally young and their family life had been chaotic. The credibility of their statements was increased by the fact that they had given similar accounts of the events. Further, they had given account of empirical details, which they could not have taken in by, for example, watching films or sexual acts between adults. Reference was here made to the nasty taste of yellow snot secreted from the penis and which they had washed away with toothpaste. A further example was the comparison made by the children between the sensation when touching with their tongue the gum in their mouth following a tooth loss and the slimy female genital area. In these circumstances, the court found that the children had been truthful when giving their statements.
19.  As to the discussion during the visit to the prison, the court repeated the reasons in its decision of 10 May 2001. It also noted that M., a psychologist, considered that K. was very prone to external influence. The court concluded that the discussions in prison were not relevant. The court upheld the lower court's judgment insofar as the applicant's conviction and sentence were concerned.
20.  The applicant requested leave to appeal, arguing, inter alia, that K., following her retraction of the allegations, should have been heard either in the Court of Appeal or in an additional investigation. The applicant requested that K. be heard before the Supreme Court (korkein oikeus, högsta domstolen), in person in one way or another, and that the applicant be given an opportunity to put questions to her.
21.  On 18 October 2001 the Supreme Court refused leave to appeal.